Last Chance Agreements

May 11, 2015

Last chance agreements (LCA’s) and settlements contain terms agreed to by an employee, or former employee, and the agency, in which the employee is provided an opportunity to retain (or return to) employment, usually when the agency would otherwise remove, or did in fact already remove, the employee from federal employment. An employee’s response to a proposed removal (or other adverse action), if persuasive, may lead the deciding official to conclude the employee might succeed, if provided another opportunity. Normally, these agreements provide for waivers of appeal in exchange for the agreement to provide an employee a “last chance.” Though some cases do not allow latitude for Last Chance Agreements (such as sexual misconduct, workplace violence, embezzlement), as agency representatives, we often advise deciding officials to consider such agreements as a measure to reduce agency exposure to risk and expenditure of resources in defending the action upon appeal, as well as avoiding associated costs in back filling the position, particularly if the employee has an established history of good to exceptional performance. As a means of alternative discipline, Last Chance Agreements serve as a vital tool in both preserving an agency’s need to maintain order and providing an otherwise good employee the opportunity to avoid the catastrophic outcome of a removal from federal service.

In consulting with our employee clients, we typically assess applicability of Last Chance Agreements in all removal actions at the proposal stage. This is why it is imperative employees seeking our assistance contact us as early in the process as possible so we may incorporate offers of Last Chance Agreements (if applicable) early in the response stage (usually done in the form of offered conditions as part of the written response). It is far better (and more cost effective) to arrive at an interest based solution short of removal, than to argue the matter on appeal.

Practical Key Points Concerning Last Chance Agreements

Last Chance Agreements are sometimes called Abeyance Agreements

The duration of a Last Chance Agreement is typically one to two years

If “actionable misconduct” occurs within the period the employee is subject to the terms of the Agreement, the employee can be removed without further notice or process

In most cases, a waiver of appeal will be required

There is no requirement the Agency equally apply an opportunity for a Last Chance Agreement to all employees

If the terms of a Last Chance Agreement are imposed (i.e. removal imposed subsequent to a claim the employee breached the terms), it is extremely difficult for the employee to assert jurisdiction before the Merit Systems Protection Board

Merely offering a Last Chance Agreement at the response stage is insufficient however. In our collective experiences, we have seen a wide variety of LCA’s with varying language; some good and some really bad. LCA’s are also not generally unilaterally produced in that a last chance agreement requires the participation and agreement of an employee. See, Air Force Logistics Command v. FLRA, 91 FLRR 1-8014 , 949 F.2d 475 (D.C. Cir. 1991). Therefore, the affected employee should be prepared to actively engage the agency representative in crafting the Last Chance Agreement. However, union attempts at requiring a last chance agreement be negotiated with the union, rather than the affected employee, are generally non-negotiable because such a requirement limits an employees’ statutory right to choose their own representative or to represent themselves. See, Air Force Logistics Command, 90 FLRR 1-1591 , 38 FLRA 309 (FLRA 1990).

Special note: we have witnessed many union representatives try to reject Last Chance Agreements on behalf of union members for a variety of reasons. Sometimes, it is in a bluff to try and obtain what they perceive are better terms. It is important to keep in mind agency Employee and Labor Relations personnel are not vested in the outcome in either regard. They will make an offer and perhaps tweak certain terms if needed. However, they are truly uninterested in whether you accept the terms. If your union representatives are too difficult to deal with, you may need to intervene and accept the terms, as you have a right to do do. See, Air Force Logistics Command, 90 FLRR 1-1591 , 38 FLRA 309 (FLRA 1990).

If you require assistance with responding to a proposed adverse action or negotiating a Last Chance Agreement, please do not hesitate to contact us via this form or at (202) 642-1287. All initial consultations are without charge or obligation.

The material on this website is intended to provide only general information and comment to the public. Although we make our best efforts to ensure information found on this website is accurate and timely, we cannot, and do not, guarantee the information is either. Nor do we guarantee accuracy of any information contained on websites to which our website provide links. Do not, under any circumstances, rely on information found on our website as legal advice. It should be considered a general guide. Legal matters are often complicated and fact dependent. For assistance with your specific issue or inquiry please contact your local union, personnel office, or attorney. Consultants offered through this website are not attorneys and are not employees of Informed Fed. They are labor and employee relations practitioners. They provide services to clients in their individual capacities through individual agreements with their clients. Though attorneys are not required for representation in administrative matters or proceedings, there are instances in which our consultants may refer you to attorneys or otherwise make such recommendation. In no instance does this site, or consultants associated with this site, infer the provision of legal services.

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1 comment for “Last Chance Agreements”

md2tn

May 14, 2015 at 10:31 am

A union official (President) told a coworker “we do not recommend you sign an Abeyance Agreement, we would rather take it before the board.” I was floored when that was relayed to me by the coworker. Long story short, coworker communicated with LR/ER and accepted the Abeyance Agreement. Coworker is still employed and it has been 3 years.

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